Royal rule amid leadership change


  • Reflecting On The Law
  • Thursday, 13 Feb 2020

AS long as a prime minister continues to enjoy the stable support of a simple majority in the Dewan Rakyat, his position as Prime Minister is unassailable.

However, in changed circumstances, the Yang di-Pertuan Agong may be required to exercise the awesome power under Article 43(2)(a) of the Federal Constitution to appoint a new prime minister to advise the King.

These circumstances are many and varied and include the PM’s resignation, death or incapacitation, electoral defeat, loss of confidence due to party hopping, loss of leadership position within his party or coalition, break-up of the ruling coalition or disqualification from membership of Parliament under Article 48.

Resignation: In our history, four out of seven PMs have resigned – Tunku Abdul Rahman Putra Al-Haj (September 1970), Tun Hussein Onn (July 1981), Tun Dr Mahathir Mohamad (October 2003) and Tun Abdullah Ahmad Badawi (April 2009).

Death or incapacitation: Tun Abdul Razak Hussein died in office on Jan 14, 1976, while seeking medical treatment in London.

Electoral defeat: In 2018, Datuk Seri Najib Razak led his coalition to defeat in the 14th General Election.

Loss of confidence: No prime minister has ever been removed on this ground.

But at the state level, Selangor mentri besar Datuk Harun Idris (1976) and Kelantan mentri besar Datuk Muhamed Nasir (1977) forfeited their positions due to votes of no-confidence on the Assembly floor. Tan Sri Joseph Pairin Kitingan of Sabah (1994) and Datuk Seri Dr Mohammad Nizar Jamaluddin of Perak (2009) lost their leadership positions because their majorities evaporated due to party-hoppers crossing the floor.

Loss of party position: Australia has had many examples of prime ministers losing the party leadership contest and having to resign.

In India, in the late 1960s, PM Indira Gandhi was expelled from her Congress party by its stalwarts.

However, she retained her premiership because the majority of the MPs in the Lok Sabha continued to support her.

New alignments: If a coalition breaks up or new alignments are forged or there is some uncertainty about who, if anyone, commands the requisite numbers in the House, the role of the Yang di-Pertuan Agong becomes pivotal.

In this and all the above situations, His Majesty is required by Article 43(1) to ensure three minimum requirements when deciding on a prime minister.

First, the person appointed must be an elected representative in the Dewan Rakyat.

Second, in the opinion of the Yang di-Pertuan Agong, the appointee must be able to command the confidence of the majority of the members of the House (at least 112 out of the 222 MPs).

If the ruling party or coalition is solidly united behind a leader, this fact suffices to determine the question of confidence.

In such a situation, the judgment of the Yang di-Pertuan Agong cannot be subjective or arbitrary.

But if there is some division within the ruling party or coalition, the wisdom and sagacity of the King plays a role.

The third requirement, under Article 43(7), is that the appointee must not be a citizen by naturalisation under Article 19 but must be a citizen by operation of law under Article 14.

DPM: If a vacancy arises due to death or resignation, is the deputy prime minister automatically promoted to be the prime minister? This is what happened in 1976 on the death of Razak but is not required by law.

The discretion of the King should not be discounted if His Majesty feels that the deputy prime minister does not have the support in the Dewan Rakyat or if the deputy prime minister is disqualified under Article 19.

Race or religion: The Constitution is admirably free of race, religion, region or gender qualification.

Though electoral politics up to now has always resulted in a male, Muslim appointee, we cannot discount the possibility that some time in the future a bumiputra party from Sabah and Sarawak may lay claim to the coveted position.

Sabah and Sarawak together have 56 MPs in the Dewan Rakyat and this number equals 50% of the 112 MPs required to form a government.

It will appease sentiments in Sabah and Sarawak if a convention is developed that in the future, one out of two deputy prime ministers is from these states.

Nomination by party: In an unstable political situation, when the ruling party is deeply divided on the choice of the leader, the King is not bound to follow the decision by the Supreme Council or the elites of the ruling party.

It is entirely possible that when a prime minister resigns or dies, there may be realignments, party hoppings or new alliances. The Supreme Council of the ruling party may not be in sync with the sentiments on the floor and the realignments in the Dewan Rakyat.

It must be remembered that His Majesty is bound by the majority in the House rather than the majority in the Supreme Council.

His Majesty may give to the new leader a reasonable time (a week or two) to prove that he/she has the backing of at least 112 MPs in the Dewan Rakyat so that, on the first day when the Dewan Rakyat meets, the representatives do not pass a vote of no confidence against the appointee. That would not only embarrass the Yang di-Pertuan Agong, but would create a lot of instability.

Caretaker PM: If the majority party is deadlocked in a leadership tussle, the Yang di-Pertuan Agong can create an interim or provisional caretaker prime minister while he consults politicians and advisers and weighs all the options. If Australian practice is anything to go by, the Head of State’s discretion is very wide.

Normally, the highest-ranking Cabinet minister – the deputy prime minister, or Home, Defence, Foreign or Finance Minister – may be appointed.

But someone less polarising, even from a minority party, may be appointed on an interim, short-term basis while the Yang di-Pertuan Agong measures the mood of Parliament and familiarises himself with the new political alignments that are inevitable once the prime minister leaves the scene for whatever reason.

Dissolution of Parliament: If there is a vacancy in the position of the prime minister but political uncertainty rages, a General Election may bring some stability.

However, the King cannot dissolve Parliament on his own initiative. He must wait for ministerial advice under Article 40(1). Once advice is rendered, the King may accept it or reject it under Article 40(2)(b).

The vicissitudes of law and politics are many and the wisdom and sagacity of the Yang di-Pertuan Agong can guide the nation through turbulent waters if for any reason an unexpected vacancy arises in the post of the prime minister.

Emeritus Prof Shad Saleem Faruqi is Tunku Abdul Rahman Professor at Universiti Malaya’s law faculty and holder of the Tun Hussein Chair at the Institute of Strategic and International Studies Malaysia. The views expressed here are entirely the writer’s own.

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